A rough ride to freedom for information. Review of The Future of Ideas: The Fate of the Commons in a Connected World, by Lawrence Lessig, Random House (US), Australian Financial Review, 8 November

The great paradox of the information age was apparently first summarised in 1984, by Stewart Brand, now with the Sante Fe Institute:

"On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other."

For many years, enthusiasts for the Internet focused only on one side of this dichotomy. 'Information wants to be free' became first a slogan, then a cliché. In the late 1990s, as the idealism of the Internet pioneers was succeeded by the financial madness of the Internet bubble, the paradox intensified. Billions of dollars were sunk into dotcoms based on the belief that vast fortunes could be made out of giving away free information or, in other words, that you could have your Internet cake and eat it too.

On the sidelines of the Internet boom, though, were large and powerful groups who had never believed in free information. The music and motion picture industry had a long history of resisting every new technology or social development that might challenge their absolute control over their product. They had tried and failed to kill video cassette tapes, but had won other battles such as the fight to suppress digital audio tape.

The MPAA and RIAA were part of a much larger movement towards the conversion of information and knowledge into "intellectual property". This movement included the creation of new forms of patents, such as plant variety rights, and massive extension in the scope and duration of existing systems of patent and copyright protection, as well as the ease of getting new patents.

As with so many other things, the Internet bubble took the patenting phenomenon to new heights of absurdity. Amazon patented the idea of ordering books with a single click of the mouse. Reverse or 'Dutch' auctions have been around for centuries, but the Priceline company got a patent for running them over the Internet. Kozmo and Urban Fetch, two companies based on the idea of home delivering groceries ordered over the Internet, sued each other vigorously over the rights to this 'business method' until both went bankrupt (One wag called this the 'whose stupid idea was this' lawsuit). Nor was the madness confined to the US. According to the Age (July 2 2001), a Melbourne man, John Keogh sought and successfully obtained a patent for the wheel from the Patent Office, now rolled into a larger organisation named, in typical bureaucratic newspeak, IP Australia.

Behind these farcical occurrences was a growing concern that patents and other forms of intellectual property would stifle innovation and put giant monopolies like Microsoft in an impregnable position, even when their own activities were largely based on the appropriation of others' ideas.

The first person to make any real sense of this confusion was Lawrence Lessig of Stanford Law School. In his first book, Code and other Laws of Cyberspace, he argued against the idea, more popular a few years ago, that cyberspace was essentially immune from governmental regulation by its very nature. On the contrary, Lessig argued, the nature of cyberspace depended on the code used to construct it. The code of the Internet had been created in a way that facilitated communication and resisted control, but these were not immutable features. It would be quite feasible to modify the code of cyberspace in ways that would facilitate government regulation and the enforcement of property rights.

In his new book, Lessig develops this point further, pointing out the communications systems may be considered to have three layers: a content layer, consisting of the actual communication, a physical layer, representing the medium of communication and a code layer representing the rules under which communication takes place.

Within this framework, Lessig describes the idea of an information 'commons', drawing on the work of scholars like Elinor Ostrom who have explored the workings of common property systems in a range of contexts. These scholars have refuted the idea, popularised by Garret Hardin of an inevitable 'tragedy of the commons', and have shown how common and private property can be combined to enhance the benefits of both.

One part of Lessig's argument is directed against the advocates of enclosure of the information commons through the creation of unfettered rights to private 'intellectual property'. This case is not too hard to make. The most striking point is that the leading advocates of intellectual property have also been the biggest beneficiaries of the information commons. Microsoft, for example, receives huge rents from its graphical operating system, its web browser, word processor, spreadsheet, presentation software and even from flight simulators. None of these types of software were invented by Microsoft, and, in most cases, the original innovators received little benefits. Disney has pillaged the public domain for source material (even Mickey Mouse, in his original incarnation as Steamboat Willie was a copy of a Buster Keaton character, Steamboat Bill) but now demands permanent ownership of its own 'creations '.

The more difficult task is to convince supporters of free information that the victory of their cause is not guaranteed by the progress of technology. Lessig makes a number of strong points here, showing how easily the technology underlying the information commons can be turned into one of centralised control. Moreover, Lessig argues, the shift towards control is already well under way. The paradigm instance for Lessig is the decision to extend the term of copyright yet again, from 70 years after the author's death to 99, a decision currently being fought in the US Supreme Court.

Lessig makes a good case for pessimism, but there are also reasons for optimism. First, the most vigorous defences of intellectual property apply to the most trivial instances. As Lessig notes, the best explanation for the evolution of US copyright law is that copyright is extended whenever Mickey Mouse is about to fall into the public domain. The only really successful attack on free information in recent years has been the demolition of Napster, which was basically devoted to disseminating pop songs.

Conversely, the freedom to publish and reproduce serious ideas in a text format has never been greater than it is today. Quite literally, anyone with an idea and access to a computer can publish their thoughts to the entire world. I recently ran across a weblog ('blog' to the cognoscenti) maintained by a homeless man who does his publishing in a Nashville public library (the site is at http://thehomelessguy.blogspot.com).

Moreover, the legal freedom of information is well entrenched in the world of text. Copyright does not protect ideas, only the particular words used to express those ideas. Even with respect to expression, the rules of fair dealing and fair comment allow extensive quotation of the words of others, particular in relation to debate about political and social issues.

Once again the weblog phenomenon shows how this freedom has been expanded by the Internet. Many postings on weblogs consist of reproductions of entire articles, interspersed with critical commentary, which ranges from sharp refutations to blustering abuse. Such postings are often referred to as 'Fiskings', after the journalist Robert Fisk, a frequent target.

The most sustained attempt to misuse intellectual property law has been that of the Church of Scientology which has repeatedly tried to use claims of copyright to silence critics who quote from Church documents. The Church has also used a variety of techniques aimed at reducing the visibility of its critics to search engines such as Google. Although the Church has won some battles, it has lost the war. A Google search for 'Scientology' now yields as many links to anti-Scientology sites as to the Church's official sites. Moreover, the very attempt to suppress criticism has attracted the attention of many critics with no interest in the initial dispute.

There has also been some collateral damage arising from attempts to protect copyright in such trivia as Mickey Mouse and Gone with the Wind. Many books that were never bestsellers, but would still attract a small group of readers, are out of print, but not out of copyright. Everyone, including the authors, would be better off if these books were in the public domain. The legal and administrative costs of securing the rights to republish such books are prohibitive. This in one reason that Project Gutenberg, an attempt to make public domain works accessible via the Internet, has moved much of its activity to Australia where the copyright term remains at the life of the author plus 50 years.

The area where Lessig's concerns carry most weight is that of software. Here the logic of technology works towards monopoly rather than competition. Although there is no general agreement among economists as to whether monopoly is conducive or hostile to innovation, experience in the information technology sector supports the pessimistic outlook. Microsoft success in 'embracing and extending' the work of others, has produced huge profits, but offered little in the way of innovation. Even here, however, the appropriate remedy seems to lie in the sphere of antitrust and competition law rather than in the architecture of the Internet.

The picture then, is decidedly mixed. The information commons is facing enclosure as regards music, video and software. But information in the ordinary sense of the term has never been as accessible or as easily published and republished as it is today.